Endangered and Threatened Wildlife and Plants; Regulations for Listing Endangered and Threatened Species and Designating Critical Habitat, 81411-81421 [2020-27693]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration
• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 85, Number 242 (Wednesday, December 16, 2020)]
[Rules and Regulations]
[Pages 81411-81421]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27693]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 424

[Docket No. FWS-HQ-ES-2020-0047, FF09E23000 FXES1111090FEDR 212; Docket 
No. 201210-0335]
RIN 1018-BE69; 0648-BJ44


Endangered and Threatened Wildlife and Plants; Regulations for 
Listing Endangered and Threatened Species and Designating Critical 
Habitat

AGENCY:  U.S. Fish and Wildlife Service, Interior; National Marine 
Fisheries Service, National Oceanic and Atmospheric Administration, 
Commerce.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (FWS) and the National 
Marine Fisheries Service (NMFS) (collectively referred to as the 
``Services'' or ``we''), add a definition of ``habitat'' to our 
regulations that implement section 4 of the Endangered Species Act of 
1973, as amended (Act). This rulemaking responds to Supreme Court case 
law regarding the designation of critical habitat and provides 
transparency, clarity, and consistency for stakeholders.

DATES: 
    Effective date: This final regulation is effective on January 15, 
2021.
    Applicability date: This revised regulation applies to critical 
habitat rulemakings for which a proposed rule is published after 
January 15, 2021.

ADDRESSES: Public comments and materials received, as well as 
supporting documentation used in the preparation of this final 
regulation, are available on the internet at https://www.regulations.gov 
in Docket No. FWS-HQ-ES-2020-0047.

FOR FURTHER INFORMATION CONTACT: Gary Frazer, U.S. Fish and Wildlife 
Service, Department of the Interior, Washington, DC 20240, telephone 
(202) 208-4646; or Samuel D. Rauch, III, National Marine Fisheries 
Service, Office of Protected Resources, 1315 East-West Highway, Silver 
Spring, MD 20910, telephone (301) 427-8403. If you use a 
telecommunications device for the deaf (TDD), call the Federal Relay 
Service (FRS) at (800) 877-8339.

SUPPLEMENTARY INFORMATION:

Background

    On August 5, 2020, the Services published a proposed regulatory 
definition of ``habitat'' in the Federal Register (85 FR 47333); the 
definition would be added to title 50 of the Code of Federal 
Regulations in part 424 (50 CFR part 424). In that proposed rule, we 
provided the background for our proposed definition in terms of the 
statute, legislative history, and case law.
    In this final rule, we focus our discussion on changes from the 
proposed rule based on comments we received during the comment period 
and our further consideration of the issues raised. For background on 
the statutory and legislative history and case law relevant to this 
regulation, we refer the reader to the proposed rule (85 FR 47333, 
August 5, 2020).
    In finalizing the specific changes to the regulation in this 
document and setting out the accompanying clarifying discussion in this 
preamble, the Services are establishing a prospective standard only. 
Although this regulation is effective 30 days from the date of 
publication as indicated in DATES above, it will apply only to relevant 
rulemakings for which the proposed rule is published after that date. 
Thus, the prior version of the regulations at 50 CFR part 424 will 
continue to apply to any rulemakings for which a proposed rule was 
published before the effective date of this rule. Nothing in this final 
revised regulation is intended to require that any previously completed 
critical habitat designation be reevaluated on the basis of this final 
regulation.

Discussion of Changes From the Proposed Rule

    In this section, we discuss changes between the proposed regulatory 
definition and the definition we are finalizing for the term 
``habitat,'' as that term is used in the context of critical habitat 
designations and which will be set forth in the implementing 
regulations at 50 CFR 424.02.
    We proposed a regulatory definition of ``habitat'' as that term is 
used in the context of critical habitat designations under the Act. In 
addition to the proposed definition, we also sought comment on an 
alternative definition. The Act defines ``critical habitat'' in section 
3(5)(A), establishing separate criteria depending on whether the 
relevant area is within or outside of the geographical area occupied by 
the species at the time of listing, but it does not define the broader 
term ``habitat.'' See 16 U.S.C. 1532(5)(A). The Services have not 
previously adopted a definition of the term ``habitat'' through 
regulations or policy; rather, we have traditionally applied the 
criteria from the definition of ``critical habitat'' based on the 
implicit premise that any specific area satisfying that definition was 
habitat.
    However, the Supreme Court recently held that an area must 
logically be ``habitat'' in order for that area to meet the narrower 
category of ``critical habitat'' as defined in the Act Weyerhaeuser Co. 
v. U.S. FWS, 139 S. Ct. 361 (2018). The Court stated: ``. . . Section 
4(a)(3)(A)(i) does not authorize the Secretary to designate [an] area 
as critical habitat unless it is also habitat for the species.'' Id. at 
368; see id. at 369 n.2 (``we hold that an area is eligible for 
designation as critical habitat under section 4(a)(3)(A)(i) only if it 
is habitat for the species''). Given this holding in the Supreme 
Court's opinion in Weyerhaeuser, we are adding a regulatory definition 
of ``habitat.''
    Under the text and logic of the statute, the definition of 
``habitat'' must inherently be at least as broad as the statutory 
definition of ``critical habitat.'' To give effect to all of section 
3(5)(A), the definition of ``habitat'' we are finalizing is broad 
enough to include both occupied areas and unoccupied areas, because the 
statute defines ``critical habitat'' to include both occupied and 
unoccupied areas. 139 S. Ct. at 369 (``[h]abitat can, of course, 
include areas where the species does not currently live, given that the 
statute defines critical habitat to include unoccupied areas'').
    We received numerous comments that the proposed and alternative 
definitions lacked clarity, were ambiguous, and used terms that needed 
to be defined further. Additionally, commenters identified specific 
issues with some of the terms used in the proposed and alternative 
definitions and were

[[Page 81412]]

concerned overall that the definition could have unintended 
consequences on implementation of other parts of the Act or on other 
Federal programs involving habitat. In response to these comments and 
upon further consideration, the Services have revised the regulatory 
definition of ``habitat'' to be added to 50 CFR 424.02 to read as 
follows:

    For the purposes of designating critical habitat only, habitat 
is the abiotic and biotic setting that currently or periodically 
contains the resources and conditions necessary to support one or 
more life processes of a species.

    By reducing the definition to a single sentence, this structure is 
more logical, and eliminates any apparent contradiction between the 
first sentence and the second sentence of both the proposed and 
alternative definitions on which we sought comment in the proposed 
rule.
    We added an introductory phrase to the final definition (``For the 
purposes of designating critical habitat only'') that explicitly limits 
the scope of applicability to the designation of critical habitat. We 
added this explicit statement in response to public comments that 
raised concerns about the potential for the definition to apply to 
other sections of the Act or other Federal programs that use the term 
``habitat'' and thus have unintended consequences on implementation of 
these other sections and programs. This addition provides clarity that 
the definition applies only to the process of designating critical 
habitat.
    We replaced the phrase ``physical places'' with the phrase 
``abiotic and biotic setting.'' Abiotic means derived from non-living 
sources such as soil, water, temperature, or physical processes. Biotic 
means derived from living sources such as a plant community type or 
prey species. We intend for the word ``setting'' to have its common 
meaning, such as the time, place, and circumstances in which something 
occurs or develops. The addition of this phrase responds to comments 
that habitat is more than simply a physical location. As we stated in 
the proposed rule, we intentionally chose not to use the statutory 
phrase ``physical or biological features'' to avoid conflating the 
statutory language regarding occupied critical habitat with that of the 
broader definition of ``habitat'' promulgated here. However, we 
consider ``abiotic and biotic setting'' to be inclusive of ``physical 
or biological features.'' Additionally, it addresses the concerns 
raised by commenters that natural spatial and temporal variations in 
habitat were not encompassed in the proposed definition. Finally, this 
use of the phrase ``abiotic and biotic setting'' avoids the undefined 
term ``attributes,'' which commenters found to be vague, poorly 
defined, or confusing.
    We included the phrase ``resources and conditions'' to make clear 
that the definition of ``habitat'' is inclusive of all qualities of an 
area that can make that area important to the species. We intend for 
the word ``resources'' to describe the common ecological concept--which 
in general is a source or supply from which a benefit is produced and 
that has some utility. Likewise, we intend the word ``condition'' to 
describe a particular state that something is in. Examples of resources 
and conditions can include dynamic processes (e.g., riverine sand bar 
formation or fire disturbance), a set of environmental conditions 
(e.g., temperature, pH, and salinity), or any characteristics that can 
satisfy life-history needs (e.g., food, shelter). Additionally, this 
plain language takes the place of the phrase ``existing attributes'' 
that commenters stated was vague, unclear, and confusing.
    We solicited comments on whether the phrase ``depend upon'' or the 
word ``use'' better describes the relationship between a species and 
its habitat. We received many comments on these phrases. We chose to 
use the phrase ``necessary to support'' to replace the phrase ``depend 
upon to carry out'' from the proposed definition or the phrase ``use to 
carry out'' from the alternative definition. Many commenters stated 
that both ``depend upon'' and ``use'' were too broad and would 
encompass areas that should not be considered habitat, or were too 
narrow and would leave areas out that should be considered habitat. We 
intend that the phrase ``necessary to support'' applies to areas needed 
for one or more of a species' life processes. Inclusion of this phrase 
is plain language, and we intend for this phrase to convey its common 
meaning.
    We adopted the phrases ``resources and conditions,'' ``necessary to 
support,'' and currently or periodically contains.'' As discussed in 
the preamble to the proposed rule, we intend the definition of 
``habitat'' to include ephemeral habitats--areas that ``may be 
variable, both temporally and spatially, such as beach overwash areas, 
early-successional riparian communities, or riverine sandbars.'' 85 FR 
at 47335. Therefore, we included ``periodically'' to clarify that 
habitat includes ephemeral habitat, which are areas where the resources 
and conditions are not consistently present but appear at certain 
times.
    We have retained the phrase ``one or more life processes'' from the 
proposed definition for similar reasons, in that we intend for habitat 
to include areas used during a particular season (e.g., for migratory 
species) or at a particular phase in the species' life cycle (e.g., 
fresh-water spawning habitat versus adult marine habitat). We intend 
this phrase to have the common biological meaning, that is, to include 
a series of functions--such as movement, respiration, growth, 
reproduction, excretion, and nutrition--that are essential to sustain a 
living being. Retaining this phrase is consistent with terms that 
commenters suggested should be included in the definition--such as 
``reproduction,'' ``recruitment,'' or ``survival''--but avoids limiting 
the definition to a particular set of life-history needs that may not 
be applicable to all species.
    We removed the second sentence of the proposed definition because 
we incorporated some of its concepts (e.g., attributes) into the first 
sentence and the remainder of the sentence is now unnecessary. As 
discussed earlier, the addition of the phrase ``resources and 
conditions'' to the first sentence clarifies and takes the place of the 
phrase ``existing attributes,'' which commenters stated was vague, 
unclear, and confusing. The inclusion of ``or periodically'' addresses 
the clarification in the second sentence that ``habitat'' includes 
ephemeral habitat. In the preamble to the proposed definition, we 
described ephemeral habitat as habitat that ``may be variable, both 
temporally and spatially, such as beach overwash areas, early-
successional riparian communities, or riverine sandbars. For example, 
the sand bars that interior least terns use in a river may develop 
during particular times of the year correlating to changes in flow 
rates of a stream or river system.'' In light of that description, 
defining ``habitat'' as settings that ``currently or periodically 
contains the resources and conditions'' includes ephemeral habitat 
because, although we are not able to predict exactly where within the 
general setting a specific attribute or feature will form, we know that 
the area contains the resources and conditions for the attribute or 
feature to form within that general setting. Similarly, as long as the 
area currently or periodically contains the ``resources and conditions 
necessary to support one or more life processes'' of the species, the 
term ``existing'' attributes from the second sentence does not add 
meaning. At the same time, notwithstanding the inclusion of ephemeral 
and seasonal habitat in the

[[Page 81413]]

definition, the definition excludes areas that do not currently or 
periodically contain the requisite resources and conditions, even if 
such areas could meet this requirement in the future after restoration 
activities or other changes occur.
    We note that this understanding of ``habitat'' is consistent with 
the interpretive requirement that any conception of ``habitat'' in this 
context be broad enough to include currently unoccupied areas that 
nonetheless meet the definition of ``critical habitat.'' For example, a 
species may be extirpated in a particular area due to over-
exploitation, disease, or a stochastic event. If that area nonetheless 
provides ``the abiotic and biotic setting that currently or 
periodically contains the resources and conditions necessary to support 
one or more life processes of a species,'' it will remain ``habitat'' 
for the species despite the absence of the species.

Summary of Comments and Responses

    In our proposed rule published on August 5, 2020 (85 FR 47333), we 
requested public comments on a proposed definition of ``habitat'' and 
an alternative definition, with the intention of adding a definition of 
this term to our implementing regulations in 50 CFR part 424. In 
particular, we requested comment on whether either definition is too 
broad or narrow or otherwise proper or improper. We also sought public 
comment on specific terms and phrases in the proposed definition and 
alternative definition, such as ``depend upon'' or ``use,'' and whether 
the phrase ``where the necessary attributes to support the species 
presently exist'' expressly limits what could qualify as unoccupied 
critical habitat for a species. During the public comment period, we 
received several requests for public hearings. Public hearings are not 
required for regulation revisions of this type, and we elected not to 
hold public hearings. After considering several requests for extensions 
of the public comment period beyond the original 30-day public comment 
period, we also decided not to extend the public comment period.
    The APA does not specify a minimum number of days for a comment 
period, but the comment period must be long enough to afford the public 
a meaningful opportunity to comment, which usually leads agencies to 
allow a comment period of at least 60 days. Consistent with this 
principle, courts give broad discretion to agencies in determining the 
reasonableness of a comment period. Courts have frequently upheld 
comment periods that were shorter than 60 days. See, e.g., Connecticut 
Light & Power Co. v. Nuclear Regulatory Comm'n, 673 F.2d 525, 534 (D.C. 
Cir. 1982) (upholding a 30-day comment period and stating that 
``neither statute nor regulation mandates that the agency do more''). 
In addition to the length of a comment period, courts consider the 
number of comments received and whether comments had an effect on an 
agency's final rule, in assessing whether the public had a meaningful 
opportunity to comment. Although the comment period here was shorter 
than 60 days, the public had a meaningful opportunity to comment on the 
proposed rule. The Services received more than 48,000 public 
submissions representing more than 167,000 individual commenters. Among 
the submissions were multiple letters from organizations signed by 
thousands of individuals expressing general opposition to the rule. 
Although many of the other individual comments were non-substantive in 
nature, expressing either general support for, or opposition to, the 
proposed rule with no supporting information or analysis, we also 
received many detailed substantive comments with specific rationales 
for support of, or opposition to, specific portions of the proposed 
rule, and many commenters also provided unique revised definitions for 
our consideration in the final rule. In addition, the Services were 
responsive to the received comments by making revisions to the 
definition in the final rule to address them. Below, we summarize the 
significant, substantive public comments sent by the September 4, 2020, 
deadline and indicate where we made revisions to the definition in 
response to those comments.
    Comment 1: The Services received comments stating that the proposed 
definition contradicted the intent of the Act, providing varied 
reasons. Many commenters cited to the purposes of the Act (16 U.S.C. 
1531(b)) and provisions regarding critical habitat (id. Sec. Sec.  
1532(5), 1533) to support their views that any definition must be broad 
enough to serve the long-term conservation of the species. Commenters 
stated that the proposed and alternative definitions would 
significantly limit the areas eligible for critical habitat 
designations and, as a result, run counter to Congressional intent that 
critical habitat designations identify areas essential to a species' 
survival and recovery.
    Other commenters argued that the proposed and alternative 
definitions were too broad and ran contrary to the spirit of the 
definition of ``habitat'' most widely accepted among the scientific 
community. Some commenters stated that the text of the Act and the 
Weyerhaeuser decision both use present tense; therefore, the definition 
should require all attributes to be present. Those commenters argued 
the proposed and alternative definitions have the potential to 
contradict Congress's legislative intent and engage in regulatory 
overreach.
    Response: The Supreme Court recently held that an area must 
logically be ``habitat'' before that area could meet the narrower 
category of ``critical habitat'' as defined in the Act. Weyerhaeuser 
Co. v. U.S. FWS, 139 S. Ct. 361 (2018). Given the need to address this 
particular holding from the Supreme Court's opinion in Weyerhaeuser, we 
decided to develop a regulatory definition of ``habitat.'' Under the 
text and logic of the statute, the definition of ``habitat'' must 
inherently be at least as broad as the statutory definition of 
``critical habitat.'' To give effect to all of section 3(5)(A), the 
definition of ``habitat'' we are finalizing today is sufficiently broad 
to include both the occupied areas and unoccupied areas described in 
the statutory definition of ``critical habitat''; therefore, it is 
consistent with the legislative intent and the statute regarding the 
role of critical habitat in achieving the Act's purpose of species 
conservation. Furthermore, the revised definition is consistent with 
the Weyerhaeuser opinion (see 139 S. Ct. at 369 (``[h]abitat can, of 
course, include areas where the species does not currently live, given 
that the statute defines critical habitat to include unoccupied 
areas'')). Finally, because the scope of the final definition is 
necessary to encompass the full definition of ``critical habitat'' 
under the statute, it is not regulatory overreach.
    Comment 2: Many commenters requested the Services make clear that 
the definition of ``habitat'' applies only to critical habitat 
designations. They noted the term ``habitat'' is used multiple times in 
the Act and is not limited to critical habitat. Some commenters 
expressed concern regarding unintended consequences of applying this 
definition to other provisions of the Act, stating that the proposed 
rule did not address potential impacts of the ``habitat'' definition to 
other Act-based actions such as conservation planning, species and 
habitat restoration, permitting, mitigation, enforcement, and recovery 
implementation.
    Commenters also expressed concern that the definition of 
``habitat'' could have impacts beyond the Endangered Species Act, 
including a number of

[[Page 81414]]

other Federal and State programs to conserve and enhance wildlife 
habitats. One State expressed concern about the impact of this 
definition on their State endangered species act. Multiple commenters 
stated that a regulatory definition should not be used in any federal 
grant program to restrict the allocation, or to use federal funds, for 
the restoration or creation of new habitat in areas of non-habitat.
    Response: Although the Services indicated in the preamble of the 
proposed rule that our intent was to limit the definition of 
``habitat'' to the designation of critical habitat, it was not 
explicitly stated in the regulatory definition. Thus, we have revised 
the definition to explicitly limit it to the context of designating (or 
revising) critical habitat. We did this by adding ``For the purposes of 
designating critical habitat only'' to the beginning of the definition. 
The addition of this phrase will make clear that the definition of 
``habitat'' only applies in the context of critical habitat 
designations and will avoid any unforeseen or unintended consequences 
of the definition being applied in situations where it is not 
appropriate.
    Comment 3: Multiple commenters stated that application of this 
regulation should not be limited to cases in which ``genuine questions 
exist'' (as we stated in the proposed rule), and that this regulation 
should instead establish a required procedural step in which the 
Services first determine whether an area is habitat before proceeding 
to a determination that the area meets the requirements for designation 
as critical habitat. These commenters stated that we cannot rely on the 
statutory definition of ``critical habitat'' to fulfill the requirement 
of ensuring an area is habitat for the species, and some explained that 
this is a necessary step because even areas within the occupied range 
of the species do not all necessarily qualify as habitat. However, 
other commenters agreed with the position taken in the proposed rule 
that this regulation should not be used to create an additional 
regulatory procedure or step. Some commenters noted that the proposed 
rule's claim that this definition would apply only in limited cases was 
unclear because the rule would establish a regulatory definition for 
all habitat and would therefore apply to all cases.
    Response: In response to these and other comments, we have further 
clarified in this final rule that the regulatory definition of 
``habitat'' will not be used to create a new procedural step or 
regulatory process, nor will it result in any new regulatory burdens 
for landowners or other parties. As indicated by the revised wording of 
the definition, this regulatory definition is applicable only within 
the context of a critical habitat designation or revision, and it does 
not create a new category or type of regulated area. Therefore, this 
rule has no bearing on, and will not affect, other habitat programs or 
habitat-management activities.
    As we discussed in the proposed rule, if an area is occupied by the 
listed species, then as a matter of logic and rational inference, the 
area must also be habitat for the species. Similarly, given the more 
exacting criteria set forth in the regulations for designating 
unoccupied areas as critical habitat (see 50 CFR 424.12(b)(2)), which 
were recently revised to address the Supreme Court's decision in 
Weyerhaeuser, questions regarding whether an unoccupied area qualifies 
as habitat are far less likely to occur. Those regulations, which were 
revised in 2019 (see 84 FR 54020, August 27, 2019), indicate that 
unoccupied critical habitat will be considered for designation only if 
(1) the occupied areas are not adequate to ensure the conservation of 
the species and (2) there is a reasonable certainty both that the 
unoccupied areas will contribute to the species' conservation and that 
the unoccupied areas contain one or more of the physical or biological 
features essential to the conservation of the species (50 CFR 
424.12(b)(2)). This is not to say, as was asserted by some commenters, 
that we are using or intend to use the statutory definition of 
``critical habitat'' to define what is habitat for a species. We are 
instead stating that an added step of first assessing whether an area 
meets the regulatory definition of ``habitat'' before assessing whether 
it meets the definition of and criteria for ``critical habitat'' will, 
in most cases, be an unnecessary step. Therefore, we do not agree with 
comments that we should use this rule to institute a new procedure or 
process through which all areas must first be evaluated to determine 
whether or not the areas are in fact habitat for a species before we 
determine whether they meet the narrower definition and criteria for 
critical habitat.
    Comment 4: Commenters stated that the Services should state that 
any identification of ``habitat'' for a particular species will not 
impose additional regulatory consequences for landowners, project 
proponents, or other affected parties. The identification of 
``habitat'' should be a purely administrative action in preparation for 
critical habitat designation.
    Response: The Services have clarified that the revised regulatory 
definition of ``habitat'' will be applicable only in the context of 
critical habitat designation and revision. The definition does not 
create a new procedural or regulatory process, nor will it impose any 
additional regulatory consequences for landowners, project proponents, 
or other affected parties.
    Comment 5: Multiple commenters stated we should clarify that this 
rule will not affect projects that are already pending approval when 
this rule becomes effective. Some commenters noted this rule should 
apply to future critical habitat designations, as well as future 
revisions of existing critical habitat. Several commenters had the 
converse view and stated that, following conclusion of this rulemaking, 
we should review previously designated critical habitats and revise 
them as appropriate to ensure that only existing habitat is designated 
as critical habitat.
    Response: As stated in the proposed rule, the regulatory definition 
of ``habitat'' will apply only to critical habitat rules that are 
proposed after the effective date of this final rule. Thus, it does not 
apply to critical habitat that was designated or proposed for 
designation prior to the effective date of this rule. This final rule 
will not have a bearing on consultations under section 7 for any 
projects with a Federal nexus unless the project may affect areas for 
which a critical habitat designation or revision was proposed after the 
effective date of this rule. After this rule becomes effective, we do 
not intend to conduct a systematic review of all previous critical 
habitat designations. The Act provides a process by which designated 
critical habitat may be revised, and we will continue to employ that 
process. Lastly, as indicated in the proposed rule, in the vast 
majority of cases, we expect application of this definition of 
``habitat'' to be unnecessary because most designations include 
occupied areas only, and we conclude that the occupancy of the species 
confirms that the areas constitute habitat for that species.
    Comment 6: Some commenters stated that the proposed rule represents 
a departure from the Act's requirement to rely on the best scientific 
data available. Commenters stated that the concept of habitat is 
species-specific and should be defined based on the best available 
science for that species, not by a set of regulatory standards. 
Commenters asserted that application of a regulatory definition of 
``habitat'' would unnecessarily constrain what qualifies as habitat.

[[Page 81415]]

    Response: Section 4(b)(2) of the Act requires that we designate, 
and make revisions to, critical habitat on the basis of the best 
scientific data available and after taking into consideration the 
economic, national security, and other relevant impacts of specifying 
any particular area as critical habitat. We will continue to apply this 
statutory requirement when designating critical habitat, and we will 
also apply the best scientific data available when determining what 
areas meet the regulatory definition of ``habitat.'' Furthermore, 
because this regulatory definition of ``habitat'' is intentionally 
broad enough to encompass both occupied and unoccupied critical habitat 
as defined in section 3 of the Act and as further detailed in the 
implementing regulations in 50 CFR 424.12, application of this 
definition will not constrain the application of the best scientific 
data available to which areas qualify as critical habitat and are 
ultimately designated as critical habitat under the Act. We see no 
tension between the final definition and the requirements of the Act 
and the implementing regulations.
    Comment 7: We received numerous comments that provided various 
alternative definitions of the term ``habitat.'' Some were wholesale 
re-writes of the definitions; others used many of the same terms used 
in the proposed and alternative definitions from the proposed rule but 
with slight variations; some referred to dictionary definitions or 
definitions in published relevant ecological or conservation-biology 
literature; and some used different terms and phrases from the ones 
used in the proposed rule. Some commenters provided multiple variations 
in the same comment letter.
    Response: We considered the various alternative definitions 
provided and have revised the definition of ``habitat'' accordingly. 
After considering the substantive comments, we made the changes 
summarized in the preamble to arrive at the final definition in this 
rule. In short, our edits relative to the proposed and alternative 
definitions in the proposed rule were focused on making the final 
definition clearer by using more commonly understood words. We also 
explain certain words and phrases (e.g., ``support'') later in this 
response-to-comments section, again to help where additional clarity 
was requested. We have explained more fully the relationship between 
our final definition and those of published definitions of ``habitat'' 
that we considered (see the relevant comment and response below). We 
determined that our final definition could not be identical to these 
published definitions because it has to fit within the regulatory 
framework of the Act. This concept is explained further in our response 
to the comment below regarding the relationship of our definition to 
those in the scientific literature.
    Comment 8: Multiple commenters requested to review the scientific 
literature that the Services used in developing the proposed and 
alternate definitions of habitat. Commenters also requested that we 
further explain our rationale by providing an analysis of the 
literature relative to the final rule's definition and by describing 
why other existing definitions of ``habitat'' were insufficient for our 
regulatory framework. The commenters also provided examples of existing 
literature that describes definitions of ``habitat'' used within the 
conservation biology community, as well as a recently developed 
definition of ``habitat'' for use within a regulatory context (Rylander 
et. al 2020).
    Response: In developing our final regulatory definition of 
``habitat,'' we considered several published definitions from the 
ecological and conservation-biology literature.
    Two definitions that we considered in detail were Odum's (1971) 
definition, ``the place where an organism lives, or the place where one 
would go to find it,'' and Kearney's (2006) definition, ``a description 
of a physical place, at a particular scale of space and time, where an 
organism either actually or potentially lives.'' Neither these nor 
other definitions in the scientific literature are well-suited to our 
particular purpose here, which is to define the term within the legal 
framework for designation of critical habitat under the Act. The Act 
defines ``critical habitat'' not just in terms of where a species may 
be found, but also in terms of which areas provide resources that 
further the species' conservation. Further, we find that none of the 
existing definitions clearly incorporate areas that are not currently 
occupied by the species but that may still satisfy the requirements to 
be considered unoccupied critical habitat. Our definition includes 
unoccupied areas, and therefore complies with the intent of the Act, 
which requires the Secretaries to designate as critical habitat not 
only areas that are occupied by the species, but also those areas that 
are ``outside the geographical area occupied by the species at the time 
it is listed upon a determination by the Secretary that such areas are 
essential for the conservation of the species'' (16 U.S.C. 1532(3)).
    We also considered the definition used by Canada's Species at Risk 
Act (SARA; Canada Sec.  2(1)). Under SARA, ``habitat'' is defined as 
``(a) in respect of aquatic species, spawning grounds and nursery, 
rearing, food supply, migration and any other areas on which aquatic 
species depend directly or indirectly in order to carry out their life 
processes, or areas where aquatic species formerly occurred and have 
the potential to be reintroduced; and (b) in respect of other wildlife 
species, the area or type of site where an individual or wildlife 
species naturally occurs or depends on directly or indirectly in order 
to carry out its life processes or formerly occurred and has the 
potential to be reintroduced.'' Our definition has similar concepts as 
SARA's without differentiating between aquatic species and other 
wildlife. Specifically, both definitions include currently unoccupied 
areas along with occupied habitat, and both definitions take into 
account the potential for habitat to be suitable for a species only 
some of the time. Both definitions are also based on the ecological 
conditions a species needs to survive. In the case of SARA, these are 
described as ``the areas on which . . . species depend directly or 
indirectly in order to carry out its life processes.'' In our 
definition, it is ``the abiotic and biotic setting that currently or 
periodically contains the resources and conditions necessary to support 
one or more life processes of a species.'' One difference is that we 
altered the final definition from our proposed definition to avoid the 
use of the word ``depend,'' which commenters stated was vague (see 
specific response to these comments below).
    Comment 9: Commenters stated that many of the terms used in both 
the proposed and alternative definition were ambiguous, unclear, and 
undefined. Commenters stated that the lack of clarity or of clear 
definitions of the terms used in both the proposed and alternative 
definition could lead to confusion in implementation, increased 
regulatory uncertainty, and increased litigation. Commenters 
recommended that we clearly define the terms that are used in the 
definition in the final rule.
    Response: In response to these and other comments, we have revised 
the definition of ``habitat'' in this final rule. These changes are 
described in the preamble to this regulation and throughout this 
responses-to-comments section. Changes include removal of words or 
terms, the substitution of new wording to reduce ambiguity, and the 
description of intended meanings of particular words used in the final 
definition. For example, we removed both ``depend upon'' and ``use,'' 
words

[[Page 81416]]

which generated many comments both in favor of and opposed to their 
inclusion, and replaced them with ``necessary to support,'' which 
describes the ``resources and conditions'' in question.
    We further describe (below, in another response to comment) that 
our intent is for the meaning of ``support'' to be consistent with the 
purposes of the Act to recover listed species to the point at which 
they no longer need the protections of the Act. The ``resources and 
conditions'' in question must contribute to this outcome, at least 
incrementally.
    Other changes made to the proposed definition in light of 
commenters' requests for increased clarity include the deletion of the 
words ``attributes'' and ``physical places'' from the final definition. 
``Physical places'' was removed from the definition and replaced with 
``biotic and abiotic setting'' because the substituted phrase captures 
a broader set of characteristics, conditions, and processes and 
addresses the concern raised by multiple commenters that natural 
spatial and temporal variations in habitat were not encompassed in the 
proposed definition. ``Attributes'' was removed in favor of the plain-
language terminology ``resources and conditions necessary to support 
one or more life processes of a species,'' which is further described 
in a separate comment below.

Wording of the Proposed Definition

    Comment 10: Commenters' views on the terms ``depend upon'' and 
``use'' within the definition of ``habitat'' varied greatly. Some 
commenters expressed support for using ``depend upon'' instead of 
``use,'' whereas other commenters expressed the opposite view. Some 
commenters supported inclusion of both terms within the definition 
because this construction would capture the ideas both that the species 
relies on the area and that individuals are in fact using the area. 
Other commenters discussed how both of these closely related terms were 
too vague and could be interpreted in various ways, narrowly as well as 
broadly, with some commenters suggesting that both terms be used in the 
definition, and other commenters suggesting that one or both of the 
terms be replaced with other, clearer terminology--such as ``supports 
the species.''
    Commenters in favor of using ``depend upon'' stated that this 
phrasing more accurately reflects the relationship between species and 
their habitat and is consistent with the well-established principle in 
the scientific literature that habitat is more than just areas that a 
species physically uses. Some commenters also asserted that ``depend 
upon'' is preferable to ``use'' because it is consistent with the 
language in section 2 of the Act stating that the purpose of the Act is 
to provide a means by which the ecosystems that endangered species and 
threatened species depend upon may be conserved. Some commenters noted 
that ``use'' is vague and may imply that a negligible level of reliance 
on an area or incidental use of an area is sufficient for the area to 
qualify as habitat, or it may be interpreted to refer to concepts of 
habitat use or resource use rather than what constitutes habitat.
    In contrast, commenters in favor of the word ``use'' or ``may use'' 
stated that ``depend upon'' could be applied too narrowly in that it 
may imply obligate use (restricted to one) , and it is too similar in 
meaning to the word ``essential'' in the statutory definition of 
``critical habitat.'' Other commenters stated that ``use'' is 
preferable because it more accurately describes the relationship 
between species and their environments. Some commenters preferred 
``use'' because it acknowledges that habitat may include areas where 
the species does not currently exist.
    Response: Given the large number of comments for and against using 
each of the two terms--``depend upon'' and ``use''--in the regulatory 
definition of ``habitat,'' we have revised the final definition to 
eliminate use of these terms altogether. Based on the public comments, 
we have replaced these terms with other, plain-language words that more 
clearly indicate the intended meaning of the term ``habitat'' and avoid 
the types of ambiguity and misinterpretations discussed by the 
commenters. Specifically, we have focused the definition on the abiotic 
and biotic setting that provides resources and conditions ``necessary 
to support'' one or more life processes of the species. What is 
considered ``necessary to support'' the species will be grounded in the 
best available science for the particular species and the common-sense 
application of ecological principles. We also find that this phrasing 
better demonstrates how the definition of ``habitat'' is inclusive of 
both areas that would qualify as occupied critical habitat and areas 
that would qualify as unoccupied critical habitat.
    Comment 11: Commenters found the phrase ``capacity to support'' to 
be ambiguous and subject to misinterpretation, and requested that the 
Services provide a definition to clarify this ambiguity, especially 
with respect to how ``capacity to support'' relates to either ``depend 
upon'' or ``use.'' Some of their concern related to how the word 
``capacity'' could be interpreted--whether narrowly, to exclude 
marginal-quality habitat because it refers only to areas that contain 
all necessary attributes to support the species, or broadly, to include 
areas of any quality because it includes areas that have or could 
develop some attributes that could support the species if restored. 
Commenters also expressed uncertainty as to whether ``support'' only 
means that the species can survive, or whether the habitat can sustain 
the species into the future.
    Response: As discussed earlier, we have removed the second sentence 
from the definition because the changes to the first sentence have made 
it unnecessary. Therefore, the term ``capacity'' no longer appears in 
the definition or raises these questions. The term ``support'' remains 
in the definition, but now appears in the first sentence. We use that 
term consistent with the intent of the Act--to further the conservation 
of listed species. Specifically, to ``support'' a listed species' life 
processes, resources and conditions must contribute, at least 
incrementally, to bringing the species ``to the point at which the 
measures provided pursuant to . . . [the Act] . . . are no longer 
necessary'' (16 U.S.C. 1532(3)). This approach is also consistent with 
our recent revisions to the procedures used to designate critical 
habitat (50 CFR 424.12(b)(2); 84 FR 45020, August 27, 2019), which 
specify that the Secretary must determine, in part, that there is a 
reasonable certainty that the area will contribute to the conservation 
of the species.
    Comment 12: A number of commenters expressed concern that the 
proposed and alternative definitions focus too narrowly on ``physical 
places'' and do not recognize habitat is the resources and conditions 
found in those physical places that provide for the needs of the 
species. Some suggested the definition of ``habitat'' should emphasize 
the biotic and abiotic components that comprise a species' habitat and 
noted that it is not a static location on a map. At least one commenter 
that supported the use of ``physical places'' suggested that we use 
``types of places'' to provide a broader application that reflects 
habitat linkages and the principle that unoccupied areas can be 
habitat.
    Response: We have removed the words ``physical places'' from the 
definition. The definition now refers to

[[Page 81417]]

the ``biotic and abiotic setting,'' which captures a broader set of 
characteristics, conditions, and processes, and accomplishes the intent 
that the comment sought to accomplish.
    Comment 13: Commenters stated that the definition should not just 
consider attributes that are present. Areas where attributes are absent 
because a given location simply cannot support any or all of the 
necessary attributes needed by a species, or because human activity or 
a natural event has altered one or more attributes, should be 
considered habitat if the site is capable of providing the attributes. 
Commenters stated that using ``presently'' makes the definition too 
narrow and does not include enough areas that have the capacity to 
support the species. Additionally, commenters believe the terms 
``existing attributes'' and ``necessary attributes'' are vague and 
should be clarified. Other commenters stated that the definition should 
include ``all necessary attributes'' and the definition should focus on 
attributes that can support populations rather than individuals.
    Response: We have added the phrase ``resources and conditions 
necessary to support one or more life processes of a species'' to the 
definition. This revision removes the term ``existing attributes'' that 
commenters criticized as being vague and unclear. Resources and 
conditions allow for the inclusion of the aspects of habitat that are 
important to the species, including dynamic processes (e.g., riverine 
sandbar formation or fire disturbance) or a set of environmental 
conditions (e.g., temperature, pH, and salinity). By avoiding inclusion 
of areas that cannot currently or periodically support the species, 
this simplified phrasing addresses commenters' concerns that the final 
definition would be overly broad.
    Comment 14: Commenters expressed various concerns that both the 
proposed and alternative definitions of habitat emphasized 
``individuals of the species'' as a frame of reference and noted that 
it could be interpreted as something more or less than intended. Some 
commenters felt this phrasing could be applied to limit habitat 
protections in smaller areas that supported some individuals but that 
were not sufficiently large to support recovery of the species, whereas 
other commenters felt that this phrasing could be applied to include 
areas where only a single member of the species was present without 
considering the ecological relationship between the individual and the 
particular setting. Some commenters stated that, for an area to qualify 
as habitat, the species as a whole must use and need the area. These 
commenters stated that reference to the ``species'' is consistent with 
the Act, existing regulations, and the Supreme Court opinion in 
Weyerhaeuser. In contrast, some commenters stated that habitat must 
also include areas that support even a single individual of a listed 
species. These commenters stated that such an interpretation is 
consistent with the plain meaning and dictionary definitions of 
``habitat'' in that there is no requirement that the area support an 
entire population or species in order to qualify as habitat. These 
commenters recommended that, to avoid misinterpretation and 
misapplication of the definition, we clarify that the term ``habitat'' 
encompasses all areas that support the species, populations, or 
individuals of the species.
    Response: Both the proposed and alternative definitions provided in 
the proposed rule defined habitat in terms of areas that ``individuals 
of the species'' depend upon or use. The phrase ``individuals of the 
species'' was not intended to artificially restrict what qualifies as 
habitat to something less than what would be necessary to sustain the 
species, nor was it intended to artificially expand what qualifies as 
habitat to areas where, for example, only vagrant individuals are 
present. We agree that what qualifies as habitat for a given species 
should be based on the ecology of that species so that it reflects the 
specific relationship between the environment and individuals, 
populations, and the species as a whole. Because this phrase received 
extensive public comments indicating an unintended ambiguity, we have 
removed this phrase from the definition of ``habitat'' provided in this 
final rule. The final definition is instead oriented around life 
processes of the species and the setting that supports those life 
processes. We find that this revised definition removes the potential 
confusion identified by the commenters and is sufficiently broad to 
encompass what would constitute habitat at the relevant and appropriate 
biological scale--i.e., individual members of a species, populations, 
and the species as a whole.
    While the word ``species'' still occurs in the final definition, it 
is not used in a manner that constrains the definition of ``habitat'' 
to a single biological level, such as the whole species. Rather, this 
term is used as an inclusive term in the context of the definition. In 
other words, use of the term ``species'' does not preclude 
consideration of the necessary ecological linkages between individuals, 
populations, and metapopulations when assessing what constitutes 
habitat for a species.

Other Topics

    Comment 15: Commenters stated that the definition should neither 
require occupancy nor limit critical habitat designations to occupied 
habitat. Some commenters noted that habitat should not be limited to 
occupied areas because occupancy can be difficult to determine for 
certain species. Other commenters stated a concern that designating 
habitat where a species does not exist (i.e., unoccupied habitat) has 
significant impacts to private property rights and the ability to 
engage in economic activities.
    Response: The revised regulatory definition of ``habitat'' must be 
sufficiently broad to encompass both occupied and unoccupied areas that 
satisfy the definition of ``critical habitat'' in section 3 of the Act. 
Application of this definition will not constrain what qualifies as 
critical habitat because it complements the existing regulations at 50 
CFR 424.12, which prescribe when and how the Services will consider 
designating, and ultimately designate, unoccupied areas as critical 
habitat under the Act. The definition does not create a new procedural 
or regulatory process, nor will it result in any additional regulatory 
consequences for landowners, project proponents, or other affected 
parties.
    Comment 16: Commenters stated that the proposed definition was too 
narrow, in particular that it may not account for all geographic areas 
that are or could be suitable across a species' entire range, or all 
sites that a species may use, because of the limitation of the phrase 
``existing attributes.'' Conversely, other commenters stated that the 
proposed definition of ``habitat'' should be limited to specific 
geographic areas, and that the Services should clarify the relationship 
between the range, habitat, and critical habitat of a species.
    Response: As noted in the preamble above, the text and logic of the 
statute inherently require that the definition of ``habitat'' must be 
at least as broad as the statutory definition of ``critical habitat.'' 
We have therefore created this definition to be sufficiently broad to 
include both occupied and unoccupied areas. As for the relationship 
between range and habitat, the current range of a species is the 
general geographic area within which a species can be found. Therefore, 
depending on the facts surrounding a given species, the areas that 
constitute occupied habitat for the species are a subset of, or are the 
same as, its current range.

[[Page 81418]]

    Comment 17: Commenters noted that the proposed definition, 
including the phrase ``existing attributes,'' may preclude identifying 
as habitat areas that experience rapid changes in ecology driven by 
habitat loss and fragmentation or areas that may develop over time, as 
a result of changing or shifting conditions due to climate change, to 
the point that they can support the species. Additionally, other 
commenters noted that the effects of climate change may make some 
current habitat unsuitable for species while over time other areas that 
are not currently suitable habitat may become suitable. Conversely, 
some commenters stated that the Services must determine whether areas 
qualify as habitat based on current conditions, not on the expected 
future ability of an area to become habitat as a result of climate 
change.
    Response: Consistent with our longstanding practice, we will 
consider the best scientific data available, including data regarding 
changing climate, in determining what areas currently or periodically 
contains the resources and conditions necessary to support one or more 
life processes of the species. We must evaluate a species' habitat use 
and requirements on a case-by-case and species-specific basis because 
we must take into account the particular species' life history and 
ecology, including factors such as mobility, adaptability, resilience, 
phenology (the timing of recurring natural events), and home-range 
sizes. As noted previously (see response to Comment 13), the Services 
have removed the words ``existing attributes'' from the final 
definition.
    For areas that are outside the geographical area occupied by the 
species at the time of listing, we evaluate whether the best available 
scientific data indicate that an area currently or periodically 
contains the resources and conditions necessary to support life history 
needs of the particular species. We recognize that, due to varying 
levels of uncertainty regarding effects of climate change and the 
complexity of biotic and abiotic interactions within a given ecosystem, 
it may not always be possible to make reasonable predictions regarding 
how habitat is changing in response. Even if areas are initially 
determined not to be habitat, they may be subsequently determined to be 
habitat; however, there is not an automatic assumption that those areas 
would be considered to be critical habitat. If, in the future, 
conditions change or new information becomes available indicating that 
areas that were not previously considered to be habitat have the 
necessary resources and conditions at that time in the future, critical 
habitat can be revised.
    Comment 18: Some commenters stated that restoration of marginal or 
degraded areas is a necessary and proven recovery strategy for many 
species, and because the proposed definition seemingly precludes 
identification of areas needing restoration, the definition of 
``habitat'' is contrary to the conservation purposes of the Act. In 
particular, they believe this limitation would prohibit the Services 
from protecting areas that are currently unoccupied but may become 
necessary to the survival and recovery of a species. Commenters 
provided examples of circumstances in which currently unoccupied areas 
may become necessary for the conservation of the species, including: 
(1) The species' current habitat becomes degraded or destroyed, or is 
insufficient for recovery; (2) those currently unoccupied areas 
(including formerly occupied habitat) are restored; or (3) the areas 
are likely to become suitable in the future as a result of ecological 
processes such as succession. Other commenters stated that the 
definition must include areas that may require some restoration 
because, if remaining habitat were enough for a species, it is likely 
the species would not have been listed as an endangered or threatened 
species.
    Other commenters took the opposing view, stating that any 
definition of ``habitat'' must not include areas that need even a de 
minimis amount of habitat restoration because that would stretch the 
scientific understanding of the definition of ``habitat'' too far. 
These commenters stated that, if intentional restoration is required 
for an area, then it should not qualify as habitat.
    Response: The Services agree that some unoccupied areas may be 
essential to the conservation of the species; however, we disagree that 
the definition of ``habitat'' precludes the designation of such areas 
as critical habitat. However, habitat, whether occupied or unoccupied, 
must still have (currently or periodically) the resources and 
conditions necessary to support one of the life processes for the 
species.
    As noted above, the definition of ``habitat'' we are finalizing 
today is consistent with the legislative intent and the statute 
regarding the role of critical habitat in achieving the Act's purpose 
of species conservation. The definition respects the statutory text by 
distinguishing between habitat and areas that are not habitat (but can 
become habitat in the future, whether by virtue of restoration 
activities or because of other changes). As further noted above, even 
if areas are initially determined not to be habitat, they may be 
subsequently determined to be habitat. In addition, we note that in 
addition to designating areas as critical habitat, other tools and 
mechanisms are available to the Services and our partners to identify 
or protect areas in need of restoration to support the conservation of 
a species. The Services also note, as indicated in the preamble and in 
responses to comments, that we have clarified that ``habitat'' is 
defined here for the purposes of designating critical habitat and would 
not be used in other contexts.
    Comment 19: The Services received comments stating that the 
proposed definition violates the Administrative Procedure Act because 
it failed to provide a reasoned explanation or rational basis for the 
proposed definitions. Commenters stated that referring to the need to 
address the Supreme Court's decision in Weyerhaeuser is not a reasoned 
explanation because nothing in that decision required that the Services 
define ``habitat,'' encouraged the Services to adopt a restrictive 
definition, or even took issue with the Services' long-standing 
approach of defining habitat in accordance with the life history and 
ecology of each species.
    Response: Although the Supreme Court's opinion in Weyerhaeuser did 
not require promulgation of a definition of ``habitat,'' given the 
Court's holding that the Act does not give the Secretaries the 
authority to designate an area as critical habitat unless it is also 
habitat for the species, we proposed to define the term to ``provide 
transparency, clarity, and consistency for stakeholders.'' See 85 FR at 
47334, August 5, 2020. In the proposed rule, we identified our 
objectives in developing the proposed and alternative definitions 
(sufficient breadth to include both occupied and unoccupied areas and 
to accommodate the wide variety of abiotic and biotic attributes that 
the vast array of species need) and how we went about developing them 
(incorporation of useful concepts from the ecological literature while 
adding concepts to ensure sufficient breadth based on the statute and 
our experience) (id.). The proposed rule also sought comments from the 
public on specific terms and phrases in the definitions, and our 
comment responses above provide a detailed and reasoned explanation of 
why the specific terminology in the definition accomplishes the 
purposes of the definition and the conservation goals of the Act. 
Therefore, we have provided a reasoned explanation and

[[Page 81419]]

rational basis for our action as required by the Administrative 
Procedure Act.
    Comment 20: The Services received comments stating that the 
proposal violated the Administrative Procedure Act because the absence 
of a rational explanation for the proposed definitions deprived the 
public of a meaningful opportunity to comment. In particular, 
commenters stated that the proposed rule did not disclose specifically 
what information we did consider, or provide citations to the 
ecological literature that formed the basis for the proposal or to 
studies showing how the proposed or alternative definition reflects the 
principle that a species' habitat is based on its ecology.
    Response: Contrary to what these comments suggest, the public had a 
meaningful opportunity to comment on the proposed and alternative 
definitions. The proposed rule transparently communicated that, 
although concepts from ecological literature provided a starting point 
for the Services' definitions, ``no pre-existing definition was 
adequate to address the particular regulatory framework.'' As a result, 
the proposed rule did not provide citations to specific studies because 
the Services had not relied on specific studies, but instead 
``incorporated useful concepts from the literature to the extent 
appropriate and added concepts based on our decades of expertise.'' The 
public thus was provided with a meaningful opportunity to comment in 
light of the explanation in the proposed rule, combined with the 
specific questions for which the proposed rule sought comment.
    Comment 21: Several commenters supported invoking the NEPA 
categorical exclusion for ``[p]olicies, directives, regulations, and 
guidelines: that are of an administrative, financial, legal, technical, 
or procedural nature'' under the Services' NEPA implementing 
regulations (43 CFR 46.210(i) and NOAA NEPA Manual at Appendix E, 
Categorical Exclusion G7). Commenters maintained that the definition 
does not establish any new requirements that may change the scope of 
critical habitat designations, or impose any additional procedural 
steps for designating critical habitat, and some suggested that the 
fact that the Services are developing the definition in response to the 
Supreme Court's decision in Weyerhaeuser also supports the conclusion 
that the categorical exclusion applies. Alternatively, we also received 
comments opposing the invocation of a categorical exclusion for the 
proposed definitions of ``habitat.'' Some asserted that the definition 
would constitute a major substantive change in the law and would likely 
cause significant, negative environmental impacts to imperiled species 
and their habitat (for example, by undercutting both habitat and 
species recovery and restoration efforts). Others stated that the 
specific categorical exclusion that we invoked (43 CFR 46.210(i) and 
Categorical Exclusion G7 from NOAA NEPA Manual at Appendix E) does not 
apply to this rulemaking and that we did not explain why any of the 
Services' categorical exclusions applies to this rulemaking.
    Response: We conclude that the categorical exclusion for 
``[p]olicies, directives, regulations, and guidelines: that are of an 
administrative, financial, legal, technical, or procedural nature'' (43 
CFR 46.210(i) and NOAA NEPA Manual, Appendix E, Categorical Exclusion 
G7) applies to this rulemaking. As we made clear in the proposed rule, 
the objective of this rulemaking is to ``provide transparency, clarity, 
and consistency for stakeholders'' because the Weyerhaeuser decision 
may raise questions in some instances as to whether areas of unoccupied 
critical habitat are ``habitat.'' Adoption of the final definition 
would not create a new procedural step that the Services would need to 
undertake every time we designate critical habitat because in the vast 
majority of cases there is no question that the areas that qualify as 
critical habitat are ``habitat.'' The question of whether areas within 
a critical habitat definition qualify as ``habitat'' would arise only 
in the relatively rare situations when there is a question as to 
whether any of the unoccupied areas that we are considering designating 
as critical habitat qualifies as ``habitat.'' In such a situation, the 
Weyerhaeuser opinion would require the Services to undertake the 
analysis reflected in this definition, that is, to determine--based on 
concepts in the ecological literature, combined with the Services' 
regulatory and scientific experience and expertise--whether the 
unoccupied areas meet the definition of ``habitat.'' The result of 
promulgating this definition, therefore, is merely to inform the public 
and the Services' employees of the mechanics of how that consideration 
will work, so that the process of designating critical habitat is more 
straightforward, more efficient, and more transparent. Accordingly, 
this rulemaking is of a technical nature.
    Comment 22: Several commenters stated that, even if the proposed 
definition fell within a potential categorical exclusion, it would be 
inappropriate to invoke the categorical exclusion because one or more 
``extraordinary circumstances'' are present under FWS's NEPA 
regulations and NMFS's NEPA Manual. For example, commenters asserted 
that the definition could have significant impacts on ecologically 
significant or critical areas, migratory birds, species listed or 
proposed for listing under the Endangered Species Act, or Tribal lands; 
violate Tribal law requirements imposed for protection of the 
environment (such as by limiting ceremonial use of Indian sacred 
sites); be subject to public controversy; or have highly controversial 
effects and highly uncertain and potentially significant environmental 
effects. In addition, the definition could have a significant impact on 
areas designated as critical habitat both for future designations and 
for review of current designations.
    Response: We conclude that none of the ``extraordinary 
circumstances'' apply in this situation. First, this definition is 
limited to the context of designating critical habitat. Second, 
promulgating this definition does not alter the outcomes for any 
species or critical habitat designations because even before we 
finalize this definition, the Weyerhaeuser decision already required 
the Services to ensure that areas they designate as critical habitat 
qualify as ``habitat.'' Moreover, this final definition incorporates 
concepts from ecological literature, with adaptations that the Services 
put in place in light of the statutory context and their regulatory and 
technical expertise. The adaptations we have made are designed to 
ensure that the definition is sufficiently broad to apply to both 
occupied and unoccupied areas under consideration for designation as 
critical habitat and to the vast array of species and their life 
histories that may need protection under the Act. Even without 
promulgating this definition, the Services would undertake this 
analysis and would adopt and adapt the concepts from the ecological 
literature in designating critical habitat. Promulgating the definition 
through rulemaking merely makes the analysis express and transparent, 
and it therefore does not have an impact upon any species, critical 
habitat, or area of land. Finally, because the definition is pulled 
from concepts in ecological literature and the Services' practical 
regulatory experience, promulgating this definition is technical or 
administrative in nature and does not have any uncertain impacts on any 
species, critical habitat, or area of land.

[[Page 81420]]

Required Determinations

Regulatory Planning and Review--Executive Orders 12866 and 13563

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this rule is 
significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements. This rule is consistent with Executive Order 
13563, and in particular with the requirement of retrospective analysis 
of existing rules, designed ``to make the agency's regulatory program 
more effective or less burdensome in achieving the regulatory 
objectives.''

Executive Order 13771

    This final rule is an Executive Order 13771 ``other'' action.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 
601 et seq.), whenever a Federal agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare, and make 
available for public comment, a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency, or his designee, certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide a statement of the factual basis for certifying 
that a rule will not have a significant economic impact on a 
substantial number of small entities. The following discussion explains 
our rationale.
    This rulemaking responds to applicable Supreme Court case law 
regarding designating critical habitat under the Endangered Species Act 
and provides transparency, clarity, and consistency for stakeholders. 
The changes to these regulations do not alter the reach of designations 
of critical habitat.
    NMFS and FWS are the only entities that are directly affected by 
this rule because we are the only entities that designate critical 
habitat under the Endangered Species Act. No external entities, 
including any small businesses, small organizations, or small 
governments, will experience any economic impacts from this rule. At 
the proposed rule stage, we certified that this rule would not have a 
significant economic effect on a substantial number of small entities. 
Nothing in this final rule changes that conclusion.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) On the basis of information contained in the Regulatory 
Flexibility Act section above, this final rule would not 
``significantly or uniquely'' affect small governments. We have 
determined and certify pursuant to the Unfunded Mandates Reform Act, 2 
U.S.C. 1502, that this rule would not impose a cost of $100 million or 
more in any given year on local or State governments or private 
entities. A Small Government Agency Plan is not required. As explained 
above, small governments would not be affected because this final rule 
would not place additional requirements on any city, county, or other 
local municipalities.
    (b) This rule would not produce a Federal mandate on State, local, 
or Tribal governments or the private sector of $100 million or greater 
in any year; that is, this final rule is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. This rule would impose 
no obligations on State, local, or Tribal governments.

Takings (E.O. 12630)

    In accordance with Executive Order 12630, this rule would not have 
significant takings implications. This rule would not directly affect 
private property, nor would it cause a physical or regulatory taking. 
It would not result in a physical taking because it would not 
effectively compel a property owner to suffer a physical invasion of 
property. Further, the rule would not result in a regulatory taking 
because it would not deny all economically beneficial or productive use 
of the land or aquatic resources and would not present a barrier to all 
reasonable and expected beneficial use of private property.

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, we have considered 
whether this rule would have significant federalism effects and have 
determined that a federalism summary impact statement is not required. 
This rule pertains only to designation of critical habitat under the 
Endangered Species Act, and would not have substantial direct effects 
on the States, on the relationship between the Federal Government and 
the States, or on the distribution of power and responsibilities among 
the various levels of government.

Civil Justice Reform (E.O. 12988)

    This rule does not unduly burden the judicial system and meets the 
applicable standards provided in sections 3(a) and 3(b)(2) of Executive 
Order 12988. This rule pertains only to designation of critical habitat 
under the Endangered Species Act.

Government-to-Government Relationship With Tribes

    In accordance with Executive Order 13175 ``Consultation and 
Coordination with Indian Tribal Governments,'' the Department of the 
Interior's manual at 512 DM 2, and the Department of Commerce (DOC) 
``Tribal Consultation and Coordination Policy'' (May 21, 2013), DOC 
Departmental Administrative Order (DAO) 218-8, and NOAA Administrative 
Order (NAO) 218-8 (April 2012), we have considered possible effects of 
this final rule on federally recognized Indian Tribes. The following 
Tribes and Tribal entities stated that Government-to-Government 
consultation is required or requested Government-to-Government 
consultation: Jamestown S'Klallam Tribe, Northwest Indian Fisheries 
Commission, Port Gamble S'Klallam Tribe, Skokomish Tribe, Confederated 
Tribes of the Chehalis Reservation, Spokane Tribe of Indians, Point No 
Point Treaty Council, Confederated Tribes of the Colville Reservation 
Fish and Wildlife, Confederated Tribes of the Colville Reservation, 
Yurok Tribe, Kootenai Tribe of Idaho, Miccosukee Tribe of Indians of 
Florida, National Congress of American Indians, Confederated Tribes of 
the Umatilla Indian Reservation, and the Upper Snake River Tribes 
Foundation, Inc. The Services have reviewed these comments

[[Page 81421]]

from the Tribes and conclude that the changes to these implementing 
regulations make general changes to the Act's implementing regulations 
and do not directly affect specific species or Tribal lands or 
interests. This regulation defines the term ``habitat'' as it is 
applied to designating critical habitat and directly affect only the 
Services. With or without these regulatory revisions, the Services 
would be obligated to continue to list species and to designate 
critical habitat based on the best available data. Therefore, we 
conclude that this regulation does not have ``tribal implications'' 
under section 1(a) of E.O. 13175, and formal government-to-government 
consultation is not required by the executive order and related 
policies of the Departments of Commerce and the Interior. We will 
continue to collaborate with Tribes on issues related to federally 
listed species and their habitats and work with them as we implement 
the provisions of the Act. See Joint Secretarial Order 3206 (``American 
Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the 
Endangered Species Act,'' June 5, 1997).

Paperwork Reduction Act

    This rule does not contain any new collections of information that 
require approval by the OMB under the Paperwork Reduction Act and does 
not alter the existing collection of information approved under OMB 
Control Number 1018-0165. An agency may not conduct or sponsor, and a 
person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act

    We analyzed this final rule in accordance with the criteria of the 
National Environmental Policy Act (NEPA), the Department of the 
Interior regulations on Implementation of the National Environmental 
Policy Act (43 CFR 46.10-46.450), the Department of the Interior Manual 
(516 DM 8), the NOAA Administrative Order 216-6A, and the NOAA 
Companion Manual (CM), ``Policy and Procedures for Compliance with the 
National Environmental Policy Act and Related Authorities'' (effective 
January 13, 2017). This rulemaking responds to recent Supreme Court 
case law.
    As a result, we conclude that the categorical exclusion found at 43 
CFR 46.210(i) applies to this regulation. At 43 CFR 46.210(i), the 
Department of the Interior has found that the following category of 
actions would not have a significant effect on the human environment 
and, therefore, that these actions are categorically excluded from the 
requirement for completion of an environmental assessment or 
environmental impact statement: ``Policies, directives, regulations, 
and guidelines: that are of an administrative, financial, legal, 
technical, or procedural nature.''
    NOAA's NEPA procedures include a similar categorical exclusion for 
``preparation of policy directives, rules, regulations, and guidelines 
of an administrative, financial, legal, technical, or procedural 
nature.'' (Categorical Exclusion G7, at CM Appendix E).
    We have considered the extent to which this regulation has a 
significant impact on the human environment and determined that it 
falls within one of the categorical exclusions for actions that have no 
effect on the quality of the human environment.

Energy Supply, Distribution or Use (E.O. 13211)

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This regulation is not 
expected to have a significant adverse effect on the supply, 
distribution, or use of energy, and it has not been otherwise 
designated by the Administrator of OIRA as a significant energy action. 
Therefore, this action is a not a significant energy action, and no 
Statement of Energy Effects is required.

Authority

    We issue this final rule under the authority of the Endangered 
Species Act, as amended (16 U.S.C. 1531 et seq.).

List of Subjects in 50 CFR Part 424

    Administrative practice and procedure, Endangered and threatened 
species.

George Wallace,
Assistant Secretary for Fish and Wildlife and Parks, Department of the 
Interior.
Christopher Wayne Oliver,
Assistant Administrator, National Marine Fisheries Service, National 
Oceanic and Atmospheric Administration.

Regulation Promulgation

    For the reasons set out in the preamble, we hereby amend part 424, 
subchapter A of chapter IV, title 50 of the Code of Federal 
Regulations, as set forth below:

PART 424--LISTING ENDANGERED AND THREATENED SPECIES AND DESIGNATING 
CRITICAL HABITAT

0
1. The authority citation for part 424 continues to read as follows:

    Authority:  16 U.S.C. 1531 et seq.


0
2. Amend Sec.  424.02 by adding a definition for ``Habitat'' in 
alphabetical order to read as follows:


Sec.  424.02   Definitions.

* * * * *
    Habitat. For the purposes of designating critical habitat only, 
habitat is the abiotic and biotic setting that currently or 
periodically contains the resources and conditions necessary to support 
one or more life processes of a species.
* * * * *
[FR Doc. 2020-27693 Filed 12-15-20; 8:45 am]
BILLING CODE 4333-15-P